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Abstract

Over the course of the last two years, the Supreme Court has engaged in a long-overdue assessment of the constitutionality of federal trademark law prohibitions on the registration of offensive marks. In its unanimous 2017 decision in Matal v. Tam, the Court held that the disparagement clause is a content-based provision that violates the First Amendment. In 2019, the Court in Iancu v. Brunetti held that the refusal to register the mark “FUCT” on grounds that it was immoral or scandalous would also violate the First Amendment. These cases offered an opportunity for the Court to clarify the proper role of free speech analysis in the context of the federal trademark registration system. The central holding of both cases is that content-based prohibitions related to the viewpoint or message conveyed by a trademark cannot be precluded from registration.

In light of Tam and Brunetti, the Lanham Act’s provision precluding registration of any disparaging, scandalous, or immoral mark is invalid and unenforceable. This leaves the government with no statutory basis for refusing to register marks containing vulgar, profane, or obscene words and images. The question going forward, however, is whether these landmark cases would nevertheless leave open an opportunity for Congress to draft a new, more narrowly tailored prohibition on marks that would not present the same breadth of First Amendment concerns. Thus, this article explores whether a statute (along with implementing regulations) precluding the registration of vulgar, profane, and obscene marks might be drafted such that it constitutes a reasonable, viewpoint-neutral restriction on speech.